Friday, December 21, 2007

illegal immigration is not a crime posted by Aziz Poonawalla at Monday, September 10, 2007 permalinkView blog reactionsSo says Rudy Giuliani, on the Glenn Beck radio show:

GIULIANI: Glenn, it's not a crime. I know that's very hard forpeople to understand, but it's not a federal crime.

GLENN: It's a misdemeanor but if you've been nailed, it is acrime. If you've been nailed, ship back and come back, it is a crime.

GIULIANI: Glenn, being an illegal immigrant, the 400,000 were notprosecuted for crimes by the federal government, nor could they be. Iwas U.S. attorney in the southern district of New York. So believe me,I know this. In fact, when you throw an immigrant out of the country,it's not a criminal proceeding. It's a civil proceeding.

GLENN: Is it --

GIULIANI: One of the things that congress wanted to do a year agois to make it a crime, which indicates that it isn't.

GLENN: Should it be?

GIULIANI: Should it be? No, it shouldn't be because the governmentwouldn't be able to prosecute it. We couldn't prosecute 12 millionpeople. We have only 2 million people in jail right now for all thecrimes that are committed in the country, 2.5 million. If you were tomake it a crime, you would have to take the resources of the criminaljustice system and increase it by about 6. In other words, you'd haveto take all the 800,000 police, and who knows how many police we wouldhave to have.

and also Tom Tancredo, in an Op-Ed for USA Today:

Right now, illegal presence in the USA is not a crime; it is acivil infraction. The House Judiciary Committee voted to make it afelony but then was counseled that millions of new felons could clogour courts.

Chairman James Sensenbrenner, R-Wis., wrote an amendment to hisown bill asking that the penalty be reduced from a felony to amisdemeanor; 191 Democrats and a few Republicans voted to keep thefelony penalty in the hope that it would be a poison pill to defeatthe measure.

Several have disagreed with the assertion based on USC, Title 8,Section 1325, which states:

Any alien who (1) enters or attempts to enter the United States at any time orplace other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by awillfully false or misleading representation or the willfulconcealment of a material fact, shall, for the first commission of anysuch offense, be fined under title 18 or imprisoned not more than 6months, or both, and, for a subsequent commission of any such offense,be fined under title 18, or imprisoned not more than 2 years, or both.

However, there is an important clarification to this, namely thatillegal presence is not a crime, only illegal entry. There was asuperb discussion (for once) about this at RedState, which includedthe following comment:

The Law by AndrewHyman (#11)

People who immigrate legally but then overstay the term of validlegal visas are unlawfully present. That does not make them criminals.

However, people who immigrate illegally (e.g. by sneaking acrossfrom Canada or Mexico without any kind of visa or other authorization)are criminals under 8 USC 1325.

The distinction is important because for prosecution under Section1325 there must be proof of illegal entry. However, many illegalimmigrants have simply overstayed a legal visa.

Rudy's point about legal resources is also a critical one that far toomany reflexively anti-immigration folks do the rule of law a gravedisservice by brushing aside. In point of fact, legal resources are assubject to triage concerns as any other resource. If identifying theimmigration entry method of 12 million laborers, and then initiatingprosecution proceedings against the (presumably large) fraction ofthat 12 million under Section 1425, is a high priority for you thenthat's your right to advocate for. However, it will come with reducedprosecutions for almost every other federal crime, an increase intaxes at every level of government, or both. Keep in mind that thetotal number of federal prosecutions in the 12 largest districtscombined is projected to be 61,000 this year. Also keep in mind thatdrug prosecutions are still projected to be 46% of the total, up from41% last year.

And it bears mentioning that these 12 million people are doingessential labor, which non-immigrants simply will not do. Case inpoint: the fruit and vegetable harvests in North Carolina and California.

The farms that supply Nash Produce were among many across thestate that couldn't find enough workers last fall, and farmers say theproblem could escalate this year. Enforcement raids have increased thecost to immigrants of sneaking over the border and discouraged manyillegal immigrants from coming.

Some worry that North Carolina will end up like California, whereportions of last fall's crops rotted in the fields and ripe fruit fellfrom the trees because workers didn't come to pick them.

This year, contractors are predicting that labor will be tightagain, said Joyner, president of a cooperative of about a dozengrowers, which includes Leggett. He said his farmers are so worriedthat they refused to plant all the cucumbers he could have sold this year. [...] "Americans today don't want to sweat and get their hands dirty,"said Doug Torn, who owns a wholesale nursery in Guilford County. "Wehave a choice. Do we want to import our food or do we want to importour labor?"

With the holiday season ahead, it's worth noting that Christmas treesalso are subject to the same labor issues.

The bottom line is simply this: if you are against illegal immigrantson the basis of the rule of law, then that same rule of law demandsthat every single one of those 12 million immigrants get complete dueprocess. And given that the vast majority of those 12 million peopleare doing essential and honest work that native born Americans won'tdo, it's a ludicrous waste of resources to do so. Even if 100% of allfederal prosecutions today were devoted to this, it would still onlyamount to 0.5%. And even if we somehow were to manage to deport all 12million, they would be here the very next day, given that we have nomeaningful way to police and control all 1,952 miles of border betweenthe United States and Mexico.

So what is the solution here? Well, that will be addressed more fullyin my next post (and shaped in part by the debate here). But sufficeto say for now as a hint that the present system is indeedunsustainable and harmful - but not for the reasons that theanti-immigration crowd thinks.